Memeorandum

April 13, 2006

Libby's Team Replies On Disclosure

Jeralyn Merritt has Team Libby's latest on the disclosure question (29 page .pdf or here) and has added some must-read UPDATES. It's hard to believe this will make as many headlines as Fitzgerald's last filing, but dig in.

Here, for example, is a headline that will not appear: "Libby Didn't Lie, But Fitzgerald Did". From a footnote on p. 3:

Perhaps not surprisingly, given the media’s overwhelming interest in this case, an erroneous statement in the government’s response brief led to stories in the press that falsely accused Mr. Libby of making inaccurate statements – or even lying – to reporter Judith Miller about the contents of the NIE. (See, e.g., Walter Pincus, Specter Says Bush, Cheney Should Explain Leak, WASHINGTON POST, April 10, 2006, at A04, attached as Ex. A.) The government has since written a letter to the Court to indicate that, consistent with his grand jury testimony, Mr. Libby did not tell Ms. Miller “that a key judgment of the NIE held that Iraq was ‘vigorously trying to procure’ uranium.” (See Ltr. from Patrick J. Fitzgerald to Hon. Reggie B. Walton, dated April 11, 2006, attached as Ex. B.) Instead, during his testimony, Mr. Libby drew careful distinctions between the key judgments of the NIE about WMD and its section on uranium. Accordingly, there is no basis for the media reports that accused Mr. Libby of misrepresenting the key judgments of the NIE to Ms. Miller.

My apologies - I see the NY Times is covering this, with a different headline: "Prosecutor Corrects Filing About Former Aide to Cheney". Folks who track this sort of thing will want to see how many of the blogs that pounded Libby for misrepresenting the key judgments of the NIE to Miller will note the correction [And I am advised in the comments that several have; here, for example, is TalkLeft]. And here is the letter itself.

And as we read on, we wonder - was our man Fitzgerald being a bit cute with other facts in his last filing? More from Team Libby (p. 20):

The government pretends that Mr. Wilson’s wife was a part of the response Mr. Libby was instructed to make to Mr. Wilson’s false claims, and even argues that “[d]isclosing the belief that Mr. Wilson’s wife sent him on the Niger trip was one way for defendant to contradict the assertion that the Vice President had done so . . .” (Id. at 19.) In fact, as the government is well aware, contemporaneous documents reflect the points that Mr. Libby was to make to reporters, and these documents do not include any information about Wilson’s wife. Further, the government’s theory ignores the fact that neither the indictment nor the evidence supports the notion that Mr. Libby told any reporter that “Mr. Wilson’s wife sent him on the Niger trip.” The only reference to such an idea in the indictment is the allegation in paragraph 23 that Matthew Cooper asked Mr. Libby on July 12, 2003 whether he had heard that Wilson’s wife was involved in sending him on the trip, and Libby said “he had heard this information too.”

Emphasis added - presumably this refers to some typed-up talking points. We harped on the broader point a bit, or meant to - Fitzgerald never presents evidence that Cheney directed Libby to discuss Ms. Plame, even though there are passages from the Fitzgerald filing where presenting such evidence (if it existed) would be totally appropriate. For example:

Defendant further testified that on July 12, 2003, he was specifically
directed by the Vice President to speak to the press in place of Cathie
Martin (then the communications person for the Vice President)
regarding the NIE and Wilson. Defendant was instructed to provide what
was for him an extremely rare “on the record” statement, and to provide
“background” and “deep background” statements, and to provide
information contained in a document defendant understood to be the
cable authored by Mr. Wilson. During the conversations that followed on
July 12, defendant discussed Ms. Wilson’s employment with both Matthew
Cooper (for the first time) and Judith Miller (for the third time).
Even if someone else in some other agency thought that the controversy
about Mr. Wilson and/or his wife was a trifle, that person’s state of
mind would be irrelevant to the importance and focus defendant placed
on the matter and the importance he attached to the surrounding
conversations he was directed to engage in by the Vice President.

Here is the TIME article co-authored by Matt Cooper that came from that, as well as Matt Cooper's recollection of the circumstances.

And Judy Miller's account includes this on her July 8 interview with Libby:

Mr. Fitzgerald asked me whether Mr. Libby had mentioned nepotism. I
said no. And as I told the grand jury, I did not recall -- and my
interview notes do not show -- that Mr. Libby suggested that Ms. Plame
had helped arrange her husband's trip to Niger. My notes do suggest
that our conversation about Ms. Plame was brief.

And for their July 12 talk, it is not clear whether Ms. Plame was mentioned at all:

My third interview with Mr. Libby occurred on July 12, two days
before Robert D. Novak's column identified Ms. Plame for the first time
as a C.I.A. operative. I believe I spoke to Mr. Libby by telephone from
my home in Sag Harbor, N.Y.

I told Mr. Fitzgerald I believed that before this call, I
might have called others about Mr. Wilson's wife. In my notebook I had
written the words ''Victoria Wilson'' with a box around it, another
apparent reference to Ms. Plame, who is also known as Valerie Wilson.

I told Mr. Fitzgerald that I was not sure whether Mr. Libby
had used this name or whether I just made a mistake in writing it on my
own. Another possibility, I said, is that I gave Mr. Libby the wrong
name on purpose to see whether he would correct me and confirm her
identity.

I also told the grand jury I thought it was odd that I had
written ''Wilson'' because my memory is that I had heard her referred
to only as Plame. Mr. Fitzgerald asked whether this suggested that Mr.
Libby had given me the name Wilson. I told him I didn't know and didn't
want to guess.

My notes of this phone call show that Mr. Libby quickly turned
to criticizing Mr. Wilson's report on his mission to Niger. He said it
was unclear whether Mr. Wilson had spoken with any Niger officials who
had dealt with Iraq's trade representatives.

With the understanding that I would attribute the information
to an administration official, Mr. Libby also sought to explain why Mr.
Bush included the disputed uranium allegation in his 2003 State of the
Union address, a sentence of 16 words that his administration would
later retract. Mr. Libby described it as the product of a simple
miscommunication between the White House and the C.I.A.

So, based on this defense filing, Libby had prepared talking points which did not include a mention of Ms. Plame, nor did he mention a connection between Ms. Plame and the Niger trip to any reporter.

The defense re-emphasizes this:

The government’s argument that Mr. Libby attached importance to “the controversy about Mr. Wilson and/or his wife” (id. at 20) cleverly masks the fact that the evidence on which this argument relies – e.g., the involvement of the President and Vice- President, the declassification of the NIE, the Vice President’s direction that Mr. Libby speak to the press, the rarity of “on the record” statements by Mr. Libby – has nothing whatsoever to do with Mr. Wilson’s wife.

Here is yet another reason to look forward to a trial - the defense tells us yet again that they may call Joe Wilson:

Further, because the defense may call Mr. Wilson as a hostile witness, we need to prepare to examine him, if necessary, on the details of the trip, including his wife’s role in selecting him for the assignment and the findings he reported to the CIA, and later, to the press.

I'm not a lawyer, so help me out - is there a category of witness beyond "hostile"? "Incandescent", maybe?

MORE: Fun's fun, but who's having fun now?

The press had a great time taking a Fitzgerald comment out of context - in making a banal point about the difficulty of delivering documents with the objective of proving a negative, Fitzgerald wrote that "it is hard to conceive of what evidence there could be that
would disprove the existence of White House efforts to 'punish' Wilson." (Here, for example, is the Tuesday Times pretending that Fitzgerald was claiming to have an overwhelming case demonstrating a conspiracy.)

However, the defense is turning that back against Fitzgerald:

The government asserts that documents exist that could be characterized as demonstrating that the White House planned to punish Mr. Wilson, and that the plan involved talking to reporters about Mr. Wilson’s wife. (Gov’t Br. at 29-30.) However, the government says that although it has divulged some of those documents to the defense, it is currently withholding others. Rule 16 entitles the defense to all such documents. On this critical issue, the defense needs to know everything the government knows, to avoid getting blindsided with unexpected testimony about such a plot at trial.

One hopes that Mr. Fitzgerald enjoyed his headlines - now, if the defense is successful in using all that press attention as additional leverage, he gets to deliver the documents he was trying to retain.

STILL MORE: How Covert Was Valerie Plame? The defense makes a good arguement for finding out:

Finally, the government’s arguments about motive further underscore that the defense is entitled to discovery about whether Ms. Wilson’s employment status was classified, as the defense has requested in previous motions. The government resists disclosing information regarding the allegedly classified status of Ms. Wilson’s employment, and the knowledge and understanding of others as to whether that employment was classified, on the ground that the information is not relevant to the defense. Yet, almost in the same breath, the government presents an argument on Mr. Libby’s motive to lie that makes this information highly relevant and material to preparation of the defense.

The government states that it will argue Mr. Libby feared losing his job because the President “had vowed to fire anyone involved in leaking classified information” (id. at 28), and because Mr. Libby had requested that the White House Press Secretary say that “Libby was not the source of the Novak story. And he did not leak classified information.” (Id.) Mr. Libby was not, of course, a source for the Novak story. And he testified to the grand jury unequivocally that he did not understand Ms. Wilson’s employment by the CIA to be classified information. The government’s argument puts squarely at issue the credibility of Mr. Libby’s position that he did not leak classified information. The government surely cannot, on the one hand, contend that Mr. Libby knew he had revealed classified information (and thus felt in jeopardy of being fired), and on the other hand withhold from the defense information that would tend to prove her employment status was not classified and that others who knew of that employment had the same understanding.

I find this to be a bit muddled - even if her status was in fact classified (and IIRC, Fitzgerald has asserted that in various filings, and the original CIA referral was for a leak of classified information), the key point would seem to be, did Libby know (or fear) that at the time he testified to the FBI and the grand jury?

Well. The defense also reiterates its request for the CIA referral document. Here is just one of their arguements:

And, to the extent that Director Tenet was involved in the creation of the referral documents, or actively pushed the DOJ to investigate the disclosure of Ms. Wilson’s identity, the referral documents would show that the bias against Mr. Libby reached to the highest levels of the CIA and did not simply represent the complaints of lowerranking employees. Further, Mr. Tenet is a likely witness. If he was personally involved in the referral process, then the referral documents would be important for preparing to examine him on the issue of bias. To prepare for trial effectively, the defense must have the opportunity to explore all of these issues further.

I have not seen (or don't recall) a timetable for the judge's final decision on these discovery questions.

UPDATE: A very interesting point from the Anon Lib - does the filing contain a hint that Libby had a secret understanding with Bush and/or Cheney such that Libby was not worried about being fired for leaking classified information?

My quick reaction - if Fitzgerald had such evidence, his most recent filing would have been a great place to introduce it. Fitzgerald is clearly scraping around for any evidence at all of a Bush or Cheney role in this, so again, his silence speaks volumes.

The argument in the briefing says that they want the information about how the DOJ decided to proceed with the investigation in order to prepare for examination of DOJ witnesses that they may call at trial. Is this just a legal minimalism here? -- we are entitled because of the one reason, and that's good enough, so we aren't going to get into any other uses for the information to the defense. Or are they indicating that they don't think that an illegitimate investigation from day one is grounds for a dismissal long before they ever get to a trial?

"Based on the government's articulated motive theory, the defense is also entitled to investigate the Administration's response to the leak, such as any alleged threats by the President to fire officials who were involved. For example, if documents indicate that notwithstanding
the President's public statements about
the leak investigation, Mr. Libby had no
reason to fear losing his job, the defense is entitled to production of such documents."

What I find interesting, but not surprising, is the role reversal here. In a real criminal case with real crimes committed, it is the defense that is trying to keep stuff from being presented to the jury and the prosecution arguing admissibility. But here the defense is trying to force the prosecution to let go of information in their possession so the defense can present it to the jury. While the prosecution is holding on to it, has stated they will not present it to the jury, nor will they release it to the defense (e.g. identity of UGO, Plame’s status with CIA, etc.). In fact, to the best of my knowledge, Team Libby has not asked for anything to be quashed. So who's guilty of what here? And why is the prosecution the one that appears to have a lot to hide?

A key government witness, Matthew Cooper, and another potential witness, Mr. Wilson, have both contended that Mr. Libby participated in a smear campaign organized by the White House to punish Mr. Wilson by outing his wife as a CIA agent.

As someone who reads the newspaper, I am going to contend that

Mr. Fitzgerald participated in (and continues to conduct) a smear campaign organized by opponents of the White House to punish Mr. Cheney by outing his work-wife as a government agent communicating information about White House policies at the direction of Mr. Cheney and Mr. Bush.

So, when do we get the special prosecutor to interview Fitzgerald and all of the FBI agents and other staffers about their smear campaign?

But seriously, I find the whole NIE stunt by Fitzgerald to be pretty appalling. It is a direct assault upon the executive branch of government, and I think it adds more corroboration to the argument that Fitzgerald has been set up as a Fourth Branch of the government, not elected nor accountable to anyone elected. I mean look -- he's engaging in a separation of powers dispute with another branch of government!

With respect to Grossman v. the reporters, I presume the idea is that the alleged lies regarding what was said with the reporters bears rather directly on the issue of disclosing classified info to someone you shouldn't, whereas that's not the case with Grossman.

I'm sure Cheney will sleep better tonight after receiving this assurance from Team Libby at 21n6:

We emphasize that, consistent with his grand jury testimony, Mr. Libby does not contend that he was instructed to make any disclosures concerning Ms. Wilson by President Bush, Vice President Cheney, or anyone else.

Folks who track this sort of thing will want to see how many of the blogs that pounded Libby and Miller on this will note the correction. But while doing that, keep breathing.

Let's see, I wasn't tracking but: talkleft had a post dedicated to it. eriposte too. The ups and downs of the Libby lied claim have been discussed at TNH, while emptywheel is away, far away. I haven't kept track of dkos, though I'm quite confident it's been discussed there. fdl is maybe the big exception, as far as I can see, though it's been discussed in the comments, I think. Those are the main left Plameologists I can think of.

I think the only lefty blog to have issued a correction was The Left Coaster. I haven't seen anyone else correct it. georgia10 of DailyKos, who carried the story there, has not done so. Instead, she has taken it upon herself to censor and delete every single comment I write on DailyKos. My, my.

Oh, and for those keeping score, The Left Coaster still managed to spin the correction into something about Libby doing something bad - even worse than what they thought before! I don't know how that's possible, but hey, I'm not suffering from BDS either.

I think tonight Libby laid out who he plans to attack --and that he plans to say some of them are lying or mistaken about their own recollections:

Marc Grossman, Ari Fleischer, Karl Rove, George Tenet and Joe Wilson.

Good point, though don't forget Armitage and Powell as well. And Rove? Is Libby going to attack him, or merely call him to bolster the claim that LIbby was on firm ground when he testified that he said reporters were saying Plame was CIA and involved in his trip?

've submitted a short blog to AT re the filing with a longer article to follow this weekend.

I think the most significant poarts of the pleading is the suggestion the referral was jiggered, that the DoJ hesitated to proceed with it because it was insuffienct (remember DiGenova always said the CIA had to show the agent was covert and that they'd taken every step to protect her identity and that seemed unlikely here) and that the CIA was biased against the Administration. Further that Tenet may have had a significant role in the referral and even in pushing DoJ to proceed with it.

As to Fleischer, Wells is filing a sealed declaration tomorrow, which suggests that have some evidence respecting him which they do not yet want to make public.
He alleges that the government well knows that the documentation of what he was to tell reporters had no information about Plame and that the indictment never charges he told anyone about her being responsible for sending her husband to Niger, that he had no notion that hers was a classified position and neither did anyone else.

That there was substantial interagency fingerpointing in spring and summer of 2003, and the government cannot point to a single case excusing it from turning over documentation respecting "innocent accused"(Armitage?) or "subjects of grand jury investigation.

And Fitz sure does love newspaper evidence--He presented articles to the grand jury (ExhibsD,E,F--Pincus and Cooper stories) to the GJ which indicated Libby was smearing Wilson by outing his wife.

In non-legalese, a "hostile witness" means one that is aligned with the other side in a lawsuit. The benefit to having the Court declare a witness "hostile" when called by the other side is that leading questions are allowed, just like on cross-examination.

So Libby, if he calls Joseph Wilson (or Karl Rove) as a hostile witness, can ask him leading questions.

A leading question is one that contains or suggests the answer. E.g.,

"What color was the car?" vs. "The car was red, wasn't it?"

On cross-exam (or when questioning a hostile witness) you can ask questions that only call for a yes or no answer, which prevents the witness from telling his story his way.

Jeralyn, Like the idea of biased newspaper reporting (remember Pincus was one of the first to spout the Ambassador Munchausen line and didn't correct the lies until 2 1/2 years later) as evidence?
Let's see how that Eliott Ness with a Harvard law degree works with real rules of evidence and opposing counsel.

I find this to be a bit muddled - even if her status was in fact classified (and IIRC, Fitzgerald has asserted that in various filings, and the original CIA referral was for a leak of classified information), the key point would seem to be, did Libby know (or fear) that at the time he testified to the FBI and the grand jury?

I'm lazy and tired...but interrupted this argument to be another Fitz talking out 2 sides again.

Fitz has indicated that Libby is not charged with knowingly revealing classified --and since the investigation WAS ABOUT PLAME - I'm taking the defense is saying,

Hey...if you say he didn't knowing leak her classified status -- and her status period, presumably from his testimony, and so therefore not indicted on this ... then how can you assert he lied for fear of being fired.

I think in a nutshell. If the investigation really were about Plame,, they found a reporter agreed Libby said "Valerie Plame, Valerie Plame, Valerie Plame" and Libby said no I've never said Plame blah, blah, blah ... he would perhaps be lying because he fear loosing his job

So, I am I right...the defense just explained to the Judge what WOULD have occurred and since Fitz invoked "fear for job" they grabbed that little nugget-Bingo thank you- and plucked into their argument, which will probably work.

Tom, you were gone yesterday it looks like, but all the liberal bloggers covered Fitz' corrections. Mine is here.

That late-night snark misfired (but it's mysteriously gone now) - even though the letter was clearly dated yesterday, I let the fact that the Times was just commenting on it gull me into thinking it was new news.

As to Fitzgerald deliberately lying, of course not. But he won't be indicted for his misstatements.

They, like me, regard that referral letter as highly significant.
Indeed, they say, if the judge is to consider the privilege claim respecting it they want him to view it in private, and make findings about it on the record to make if part of any appeal should one be necessary.

Repeatedly, the memo notes the obvious Fitz razzle dazzle--make brao sweeping charges and when asked to put up the evidence, he claims it's unnecessary because the only charge is perjury so it's not relevant. I bet he gets away with this crap every day. Not in D.C. and not with these defense counsel.

At the moment I think the game plan is to get the documentaary proof that Fitz cherry picked stuff to invent a conspiracy , deciding on good leaks/bad leaks depending utterly on his bias about the participants.

My little obsession of late has been the NYT's subpoenaed notes...NYT's still hasn't told all 8, only Ari and Tenet (which is more interesting now, (especially since the other six are supposedly protect-able WH - ie..makes no sense)

Jeff,
i am surprised to see you posting with such damaged credibility.......

Care to entrall us with your next correction of the record. What will your next claim be that we have to waswte time debunking because you failed to follow the facts.

Its only fitting that you spent a week attacking Bush/Cheney/Libby and all of us based on the prosecutors lies, that we spend a little time understanding why you and others felt so sure that you just knew that Bush etc. misrepresented the NIE..when in fact all evidence shows they were straight shooters on the issue.

I'm pleased to see the direct attack on the argument Fitzgerald made several times in his brief that the information the defense sought wasn't material, because the prosecution has evidence to refute the defense theory it might support. I mentioned an example of this type of argument yesterday. A more or less consistant theme of Fitz is that the defense should simply accept as fact everything he asserts, and go from there.

Patton, though Jeff can at times be a bit irksome, I don't think he should be held accountable (beyond admitting the error, which he's done) for making an argument based on something in Fitzgerald's brief. Also, I doubt if there are many here who haven't made an incorrect claim now and then. I know I have.

Indeed. Because they certainly bolstered the defense's discovery request, and opened the door for cute observations like:

If the press stories surrounding the government’s NIE disclosure illustrate anything, it is that this case is factually complex and that the government’s notion that it involves only Mr. Libby and the OVP is a fairy tale. [Oooh, that one hurt 'em.]

As to the corrections, I'm struck by the disparity between the initial stories, with breathless allegations of improper releases of classified information, claims the Administration misrepresented the information, and conflating releasing the NIE with leaking Plame's identity--versus the dry note that Fitz corrected his filing (or a "sentence" in the filing). The Daily Howler takes folks to task for the inaccuracies, and notes they even exceeded Kevin Drum's tolerance level. And though the TalkLeft post at least acknowledges the issue, it's still engaging in conjecture like:

Since the official declassification of the report did not occur until July 18, both disclosures had to be pursuant to the "instant" declassification in June that only Bush, Cheney and Libby knew about.

"'Instant' declassification in June"? Considering we're discussing a July 8th release of information, the June contention is a bit hard to credit (apparently based on separate discussions with Woodward, a conflation discredited by Libby's subsequent reluctance to release classified info to Miller). "Instant" is similarly dubious, since discussions about providing the intel had been going on for a month :

The chairman of the Senate intelligence panel, Sen. Pat Roberts (R-Kan.), said that Tenet had agreed to provide "full documentation" of the intelligence material "in regards to Secretary Powell's comments, the president's comments and anybody else's comments." [June 9th, 2003]

Moreover, it's apparent that there's little in the way of a learning curve. You'd think after being bitten by reckless extrapolation from a one-sided brief on the 9th, folks would exercise a bit more caution on the 12th . . . or at least stop treating Fitz's assertions as if they're coming from a burning bush.

The defense intends to show the jury that the controversy over intelligence failures during the spring and summer of 2003 led certain officials within the White House, the State Department, and the CIA to point fingers at each other. This bureaucratic infighting provides necessary context for the testimony of witnesses from different government agencies. In addition, Mr. Libby plans to demonstrate that the indictment is wrong when it suggests that he and other government officials viewed Ms. Wilson's role in sending her husband to Africa as important. We need the requested documents to prepare this crucial aspect of his defense.

If the judge buys into the contents of that paragraph it would seem to me everyone and everything related to this scandal at State, CIA, and the WH are material. Wilson's political leanings are material, as are Plame's. It means Libby's atty can beat the crap out of Tenet, and Plame's supervisor, and Russert, and Armitage...you name it.

The the whole thing unravels, at least to the extent that it can be discovered through documents and sworn testimony. In which case I suspect Fitz' goose would be cooked. I dunno if the judge will buy into that though.

81. The testimony of reporter Miller is central to the resolution of that part of the
criminal investigation concerning Libby. Her testimony is essential to determining
whether Libby is guilty of crimes, including perjury, false statements and the improper
disclosure of national defense information. 15 The grand jury needs to know when Libby
advised Miller about Wilson's wife -- during their private meeting outside the White
House on July 8 or during the three minute telephone call on July 12 -- and whether
Libby qualified his disclosure to Miller by stating that he had heard it only from a
reporter and did not know if it were true. Miller's testimony is essential to determine
whether Libby fabricated his claim that he only told reporters what he claimed he had
heard from Russert without a belief that the information he was passing on was either
true or classified.

---
15 If Libby knowingly disclosed information about Plame's status with the CIA, Libby
would appear to have violated Title 18, United States Code, Section 793 if the
information is considered "information respecting national defense." In order to
establish a violation of Title 50, United States Code 421, it would be necessary to
establish that Libby knew or believed that Plame was a person whose identity the CIA
was making specific efforts to conceal and who has carried out covert work overseas
within the last 5 years. To date, we have no direct evidence that Libby knew or
believed that Wilson's wife was engaged in covert work. [emphasis added]

But under the new standard the left has set for Bush, Fitz was clearly lying. The lefts position is even though the CIA/DCI said one thing, Bush shoul dhave gone to pGae 72, subparagraph 3, bullet 19 and seen that one agency wasn't sure the CIA was completely correct. DUE TO BUSHS FAILURE TO DO THAT - HE WAS CLEARLY LYING.

Same goes for Fitz, he clearly just took the word of the document preparer that they had it right and represented that as fact to the public. Same thing Jeff and the left did. By their own Bush standard, yes, they all lied.

As news outlets begin their reactions to the Libby filing we can all refresh our knowledge of what journalistst aspire to in their work. Bill Keller lists these points in reaction to an email question in the NYT.

--We believe in a journalism of verification rather than assertion,­ meaning we put a higher premium on accuracy than on speed or sensation. When we report information, we look hard to see if it stands up to scrutiny.
We believe in transparency -- that is, we aim to tell you how we know what we know, to attribute our information as much as possible to named sources, to rely on documentary evidence when we can. As your math teacher might have said, we "show our work."
We are agnostic as to where a story may lead; we do not go into a story with an agenda or a pre-conceived notion. We do not manipulate or hide facts to advance an agenda. We strive to preserve our independence from political and economic interests. We do not work in the service of a party, or an industry,­ or even a country. When there are competing views of a situation, we aim to reflect them as clearly and fairly as we can.
We don’t do this as a hobby but as a living. Whether you call it a craft, or a profession, or an occupation, it is something we take seriously, and we demand levels of training and experience that we seek to pass on from one generation to the
next.--

"Perhaps not surprisingly, given the media’s overwhelming interest in this case, an erroneous statement in the government’s response brief led to stories in the press that falsely accused Mr. Libby of making inaccurate statements – or even lying – to reporter Judith Miller about the contents of the NIE."

Aha. I kept reading that and thinking the "or even lying" part was weird.

You know what their point is though? I think what they're saying Fitz is attempting to prejudice the jury pool by labeling Libby a liar in the press on unrelated matters.

THAT's what the point of that passage is I bet - its groundwork for appeal.

#15 seems particularly striking now, doesn't it? Both for what it explicitly & tacitly admits. While the IIPA was clearly off the table, the other dog that wasn't barking here was any allegation that Libby even revealed classified information. Fitz is reduced to suggesting that in revealing "Plame's status with the C.I.A." -- no, wait, make that "information about" Plame's status -- Libby might conceivably have revealed "information respecting national defense." Of course, even that, as Fitz notes, would depend on establishing that her status was indeed a matter of national defense (a term which is both vague and as yet untested in litigation).

In retrospect, his press conference comments implying an excess of caution about creating a de facto official secrets act as a consequence of triggering the espionage act in Libby's case, seem considerably more disingenuous when you compare them to what he's really arguing to the court. Thanks for highlighting these particular blasts from the past; the juxtaposition is a revealing one.

Florence:
You have it exactly right!
Kate:
Don't get discouraged, expect more trashing of Rove and Fleischer as the MSM continues to GET IT WRONG. The truth is starting to come out finally, we just have to be patient as all the players "fess up".

It seemed so at the time it was revealed. And the contention that there might be a prosecution under the espionage statute(s) (18 USC 793, et seq) depended on getting over yet higher hurdles, not disucussed in the affidavit.

If this was a leak or espionage case, Fitz would have folded his tent before bringing the indictment.

And even at the time, his press conference could be seen as overreaching in its representations of "classified status" and other puffery. I know I saw it as such at the time, and I bet most readers here did, too. I can understand the urge to make the case into "something about an imporatnt leak," but he didn't need to do that, and he shouldn't have done that. It puts him the position of carrying the CIA's water.

For what it's worth, I posted a correction on my post as soon as Fitzgerald issued his, and I noted that Fitzgerald's correction "renders much of this post irrelevant."

On an unrelated note, did anyone else notice the passage in Libby's response memorandum where his lawyers ask for documents that "indicate that notwithstanding the President's public statements about the leak investigation, Mr. Libby had no reason to fear losing his job."

I think that paragraph isn't getting enough attention. If there are any such documents, and Libby's attorneys clearly think there might be, they could be very politically damaging for the White House. They are essentially asking for documents which prove that, despite the president's public statements, Libby knew that he was not in danger of being fired. The only sort of documents I can think of that would fit that description are documents which indicate that Bush knew at the time he made his statement that Libby and/or Rove were involved in the leak.

Absent mindreading, how could one know? Further, since we've only seen brief excerpts of the testimony and little of the other evidence, any guess would be just that. Trying to divine thoughts and motives behind words is difficult even in court . . . but if you insist on an evaluation now, the law is clear: he's not guilty of anything.

They are essentially asking for documents which prove that, despite the president's public statements, Libby knew that he was not in danger of being fired. The only sort of documents I can think of that would fit that description are documents which indicate that Bush knew at the time he made his statement that Libby and/or Rove were involved in the leak.

The subject is Plame's status, and they're asking for documents to show it wasn't classified:

The government surely cannot, on the one hand, contend that Mr. Libby knew he had revealed classified information (and thus felt in jeopardy of being fired), and on the other hand withhold from the defense information that would tend to prove her employment status was not classified and that others who knew of that employment had the same understanding. [emphasis added]

I'm not sure what type of mindset it takes to read that convoluted "Bush knew" explanation into such a simple concept, but I admit finding it more than a bit baffling.

Sue
It is interesting how many people are unable to entertain even the slightest idea that Libby was honest about anything. Since we all see the world through the prism of self-knowledge perhaps one shouldn't be surprised.

I'm not sure what type of mindset it takes to read that convoluted "Bush knew" explanation into such a simple concept, but I admit finding it more than a bit baffling

Cecil after all this time on here with our conspiracy minded leftist bretheren, you know very well what type of mind set is involved. If Republicans were involved it must be bad. If it has anything to do with justifing a war then it was nefarious etc etc etc ad nauseum and QED blah blah blah until you scream.

It is interesting to observe the scatatologists pick through holes designed
to trap the real targets. Ever heard of the
prosecutorial 'squeeze'? But, hope springs
eternal for the Bush Apologists who somehow
see Libby as the endgame. Happy trails to
you all.

Wagners' '...Valkyries' played through
a 10 megawatt McIntosh Amp and
Altec Lansing 'Voice of the Theatre'
drivers and woofers cascading yet
not competing with the rotor clap
of the Hugheys as FitzZorro, cigar
clenched in his ivory keys; shouts
orders to his men "Nail that endo-
morph!"

Almost instantaneously, rocket pods
explode around the rotund Rove,
too absorbed in masticating his
T-Bone on a stick, to react to the
lightning attack. Nevertheless,
he scrambles, thinning hair
a'smolderin', to shelter under a side-
walk Bistro table, which conceals
little of his ample frame. Fitz
pulls the dogrocket out of his mouth,
and almost imperceptibly whispers;
"I love the smell of bacon in the
morning."

Fitzgerald suggested in his brief that Libby lied because--among other things--he was worried that if his involvement in this mess became known, he would be fired. Libby's attorneys are asking for documents that "indicate that notwithstanding the President's public statements about the leak investigation, Mr. Libby had no reason to fear losing his job." That could be a poor choice of words by Libby's attorneys, but it seems to me they are asking for documents which might tend to prove that Bush did not really take this threat very seriously, and therefore Libby had no reason to fear being fired. For example, if Bush already knew the full extent of Libby's role in this affair before he issued the statement, Libby could be pretty confident that his job was not in danger.

sad:
I have said from day one that Libby didn't lie. I have been called naive and out of touch with reality for believing this continuously. I find much to be encouraged by in the latest Libby's lawyers filings. Hope springs etyernal, I know he is going to be vindicated.

OT As often the case I find Tom Bevan with a very cogent article at RCP on the Duke affair, which says what I said yesterday only more eloquently. Here is a tast but I would read it all.

And, of course, no racial drama would be complete without at least one of the nation's top hustlers on the scene - in this case Jesse Jackson who said yesterday that "there's such a history of white men and black women and rape and assault it [the Duke case] conjures up many ancient feelings and fears." That's only true if there's someone there to do the "conjuring," and Jackson is always more than happy to oblige.

This case is about whether or not violence was done to a woman. It doesn't matter whether she was black, brown, yellow or white. If a woman was violated against her will, the perpetrators of the crime should be prosecuted to the fullest extent of the law.

If it turns out, however, that violence wasn't done to this woman and the whole thing is a hoax, there are going to be an awful lot of Duke lacrosse players looking for a place where they can go to get their reputations back. But as history has too often shown, no such place exists.

---I can't speak to Libby's overall honesty. I don't know the man. I was simply offering an alternative reason as to why Libby wasn't worried about being fired. He didn't reveal classified information.---

None of us can. His honesty is always one of the alternatives as new info is unveiled. The inability to consider that possibility is hindering many on the left and in the MSM from completing a real analysis of existing data.

More likely, as pointed out earlier, Libby knew he wasn't the original leak, UGO was.

But that point isn't even in dispute. What kind of documents would be relevant to that point and why would Libby's team want them? McClellan said that Libby was not involved. Bush said he would deal appropriately with anyone "involved". This is what Fitzgerald is talking about. It seems to me that Libby's attorneys are fishing for evidence that Bush knew about his involvement before those statements were made, and therefore Libby did not have to lie to protect his job.

I think that is what I said. Libby didn't reveal classified information, therefore, he had no reason to be worried about his job. Besides, Fitzgerald suggests lots of things. Like baseballs that hit batters in the head and sand in his eyes. And first leakers. And lying to reporters.

But under the new standard the left has set for Bush, Fitz was clearly lying.

I am firmly on both sides of this - that was exactly what I had in mind, but I ought to remember that some jokes just can't be explained - people either get it or they don't.

When Michelle Malkin wrote that "Newsweek Lied" about the flushed Koran story, she actually had to post an update saying, no, she didn't really think Newsweek lied in a meaningful, deliberate falsehood sense, but in the "Bush Lied" sense.

I'm telling you, what Fitzgerald has done is to engage in (and suck the court system into) a conspiracy to smear a whistleblower. The whistleblowers are in the White House, they were blowing the whistle on incompetence and criminality in the CIA primarily, and the DoS too, and Fitzgerald and the FBI engaged in a powerful 2-1/2 campaign to smear and discredit them by harassing their personnel and "outing" their confidential procedures.

The differences between what Fitzgerald has done and what the White House is accused of doing is that the White House had the authority to smear Joe Wilson, though they didn't actually smear him, while Fitzgerald is operating outside of the law and doesn't have any legitimate authority to do what he is doing.

Just where in the indictment does it say Libby leaked any classified information?

First of all, there is little genuine dispute that Plame's CIA affiliation was classified information. Fitzgerald has made that clear. Libby's primary defense to that charge is that he did not KNOW her status was classified, not that it wasn't classified.

Second, even if it wasn't, that hardly negates Fitzgerald's suggestion that Libby feared for his job if the true extent of his involvement became known. The only way that suggestion could be negated is by evidence that Bush knew about Libby's involvement and still had no intention of firing him, and therefore Libby had no reason to lie about it.